Environmental Law Midterms (Law on Natural Resources and Rules of Procedure for Environmental Cases by Agcaoili)

Question 1

Chapter I. Overview

2. State Ownership over Natural Resources

What does the Regalian doctrine state? What is its appropriate Constitutional citation?

Answer 1

Under the Regalian doctrine, all land and all other natural resources belong to the State. This principle is articulated in Article XII, Section 2 of the 1987 Philippine Constitution which provides:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of agricultural lands, all other natural resources shall not be alienated.

Question 2

Chapter I. Overview

2. State Ownership over Natural Resources

What right does the Regalian doctrine vest to the state? What caution should be taken by the State in the exercise of its right vested by the Regalian doctrine?

Answer 2

State ownership over natural resources, as embodied in the 1987 Philippine Constitution, gives the state the right to the utilization and benefits over the resources within its territory. However, since the 1970s, state sovereignty over natural resources have been read with the obligation not to cause harm. Principle 21 of the 1972 Stockholm Declaration, which is the cornerstone of international environmental law, reflects these principles:

States have, in accordance with the charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.

Question 3

Chapter I. Overview

2. State Ownership over Natural Resources

Is this right vested by the Regalian doctrine absolute?

Answer 3

No.

The sovereign right over natural resources includes the right of the states to be free from external interference. The exercise of state sovereignty, however, has its limits. Principle 21 provides that the state has the responsibility not to cause harm beyond the limits of its national jurisdiction. This principle recognizes that a state’s activities may be transboundary in nature which can affect or harm the environment of another state. This is meant to be balanced with the sovereign principles of states and requires them to take responsibility for their actions which cause harm outside their own territory.

Question 4

Chapter I. Overview

4. Precautionary Principle

What does the Precautionary Principle State?

Answer 4

The precautionary principle is embodied in Principle 15 of the Rio Declaration, which states:

“In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.”

Question 5

Chapter I. Overview

4. Precautionary Principle

What is the relevance of the precautionary principle?

Answer 5

This principle advocates that the potential harm should be addressed even with minimal predictability at hand. It is designed to provide the basis for early international legal action to address serious environmental threats in cases where there is ongoing scientific uncertainty with regard to the causes of these threats. The principle requires a high degree of prudence on the part of the stakeholders. Decision makers are not only mandates to account for scientific uncertainty but can also take positive action, e.g., restrict a product or activity even when there is scientific productivity.

Question 6

Chapter I. Overview

4. Precautionary Principle

How is the precautionary principle absorbed in the Philippine statutes and rules?

Answer 6

Under Rule 20 of the Rules of Procedure for Environmental Cases, the precautionary principle is adopted as a rule of evidence. The Supreme Court’s adoption of the precautionary principle in the Rules of Procedure for Environmental Cases affords plaintiffs a better chance of proving their cases where the risks of environmental harm are not easy to prove.

Question 7

Chapter VII. Department of Energy Act of 1992 (RA 7638)

5. Powers and functions.

What is the extent of the powers and functions given to the DoE by RA 7638, as discussed in the jurisprudential ruling in Perez v. LPG Refillers Association?

Answer 7

In the instant case, the Court upheld the validity of DOE Circular in question. The Court laid down the rule that for an administrative regulation, such as the Circular in question, to have the force of penal law:
(1) the violation of the administrative regulation must be made a crime by the delegating statute itself; and
(2) the penalty for such violation must be provided by the statute itself.

The Circular satisfies the first requirement. The circular provided for fines for commission of prohibited acts. Thus, the Court found that nothing in the Circular contravened the law because DOE was expressly authorized by BP Blg. 33 and RA 7638 to impose fines or penalties.

Question 8

Chapter VIII. Petroleum Act of 1949 (RA 387)

2. State ownership.

What rights do exploration and exploitation concessions confer to the grantee?

Answer 8

Exploration and exploitation concessions do not confer upon the concessionaire the ownership over the petroleum lands and petroleum deposits, but only the right to explore for, develop, exploit, and utilize them for the period and under the conditions determined by the Act.

Question 9

Chapter VIII. Petroleum Act of 1949 (RA 387)

6. Kinds of concessions.

What are the kinds of concessions and their respective objects?

Answer 9

(a) Non-exclusive exploration permit, which grants to the permittee the non-exclusive right to conduct geological or geophysical exploration on specified areas.

(b) Exploration concession, which grants to the concessionaire the exclusive right to explore for petroleum within specified areas.

(c) Exploitation concession, which grants to the concessionaire the exclusive right to develop petroleum production within the specified areas.

(d) Refining concession, which grants to the concessionaire the right to manufacture or refine petroleum, or to extract its derivatives.

(e) Pipeline concession, which grants to the concessionaire the right to provide and operate pipeline systems for transporting petroleum.

Question 10

Chapter VIII. Petroleum Act of 1949 (RA 387)

9. Free areas.

What are free areas?

Answer 10

All lands within the territorial limits of the Philippines, including those submerged beneath seas, bays, lakes, rivers, lagoons, or the territorial waters, or on the continental shelf, or its analogue in the archipelago, but which are not within the national reserve areas, or petroleum reservations, or covered by valid and existing exploration or exploitation concession, or petroleum drilling leases are called free areas and as such are open to application for exploration concession. Applications for said areas shall be filed with the Director of Mines and Geo-Sciences.

Question 11

Chapter VIII. Petroleum Act of 1949 (RA 387)

10. National reserve areas.

What are national reserve areas?

Answer 11

Areas which have been included in any exploration or exploitation concession but which have been subsequently given up by the concessionaire voluntarily or in accordance with the requirement of Article 50 and 53 of the Act; or areas covered by exploration or exploitation concession which have expired or have been cancelled; or areas which have been included within any of the two (2) kinds of concession but which are found to be in excess of the maximum areas for such concessions, are called national reserve areas.

Question 12

Chapter VIII. Petroleum Act of 1949 (RA 387)

20. Definition of exploration.

What is the definition of exploration?

Answer 12

“Exploration” means all work that have for their object the discovery of petroleum, including, but not restricted to, surveying and mapping, aerial photography, surface geology, geophysical investigations, testing of subsurface conditions by means of borings or structural drillings, and all such auxiliary work as are useful in connection with such operations.

Question 13

Chapter VIII. Petroleum Act of 1949 (RA 387)

20. Definition of exploitation.

What is the definition of exploitation?

Answer 13

“Exploitation” means all work within the area embraced by an exploitation concession that have for their object the production of petroleum within such area, including, but not restricted to, drilling and operating wells, providing and operating pumping and storage facilities; pipelines and other such work and facilities as are useful for the purpose of making petroleum available for sale, manufacture, or refining within or for shipment for such area; but does not include any operation which is a part of manufacturing or refining, or any work outside such area which are a part of a pipeline or other special transportation system.

Question 14

Chapter VIII. Petroleum Act of 1949 (RA 387)

42. Customs duties.

What is the purpose of tax exemption of petroleum investors?

Answer 14

The Petroleum Act of 1949 was intended to encourage the exploitation, exploration, and development (EED) of the petroleum resources of the country by giving it the necessary incentive in the form of tax exemptions. This is the raison d’etre for the generous grant of tax exemption to those who would invest their financial resources towards the achievement of this national economic goal.

Question 15

Chapter VIII. Petroleum Act of 1949 (RA 387)

42. Customs duties.

Can municipalities impose taxes on petroleum products, as discussed in the jurisprudential ruling in Batangas City v. Pilipinas Shell Petroleum Corporation?

Answer 15

No.

LGUs have the power to impose business tax as discussed in Section 143 of the LGC. However, the same is subject to the explicit statutory impediment provided for under Section 133(h) of the same code, which prohibits LGUs from imposing “taxes, fees, or charges on petroleum products”. Additionally, Section 133(h) of the LGC makes plain that the prohibition with respect to petroleum products extends not only to excise taxes thereon, but all “taxes, fees, or charges”. Strictly speaking, as long as the subject matter of the taxing powers of the LGUs is the petroleum products per se or even the activity or privilege related to the petroleum products, such as manufacturing and distribution of said products, it is covered by the said limitation and thus, no levy can be imposed.

Question 16

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

2. Policy considerations.

What are the declared policies of the State?

Answer 16

a. To achieve food security;

b. To limit access to the fishery and aquatic resources of the Philippines for the exclusive use and enjoyment of Filipino citizens;

c. To ensure the rational and sustainable development, management, and conservation (DMC) of the fishery and aquatic resources in Philippines waters including the EEZ and in the adjacent high seas;

d. To protect the rights of fisherfolk. especially of the local communities with priority to municipal fisherfolk, in the preferential use of the municipal waters;

e. To provide support to the fishery sector;

f. To adopt the precautionary principle and manage fishery and aquatic resources; and

g. To grant the private sector the privilege to utilize fishery resources under the basic concept that the grantee, licensee, or permitee thereof shall not only be a privileged beneficiary of the State but also active participant and partner of the government in the sustainable development, management, conservation, and protection (DMCP) of the fishery and aquatic resources of the country.

Question 17

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

3. Application of the law.

Where should the provisions of the Fisheries Code be enforced?

Answer 17

a. all Philippine waters including other waters over which the Philippines has sovereignty and jurisdiction, and the country’s 200-nautical mile EEZ and continental shelf;

b. all aquatic and fishery resources whether inland, coastal or offshore fishing areas, including but not limited to fishponds, fishpens/cages;

c. all lands devoted to aquaculture or businesses and activities relating to fishery, whether private or public lands; and

d. all Philippine flagged fishing vessels operating in areas governed by a Regional Fisheries Management Organization (RFMO), in the high seas, or in waters of other coastal states.

Question 18

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

4. Internal waters, territorial sea, contiguous zone, and exclusive economic zone.

What are internal waters?

Answer 18

Internal waters are all waters (part of the sea, rivers, lakes, etc.) landwards from the baseline of the territory. Sovereignty over these waters is the same in extent as sovereignty over land, and it is not the subject to the right of innocent passage.

Under the 1987 Philippine Constitution, the internal waters of the Philippines include the waters around, between, and connecting (ABC) the islands of the archipelago. This type of internal waters is considered “archipelagic waters”.

Question 19

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

4. Internal waters, territorial sea, contiguous zone, and exclusive economic zone.

How is the territorial sea defined?

Answer 19

The territorial sea is the belt of sea outwards from the baseline up to 12 nautical miles beyond. Archipelagic states, like the Philippines, have drawn “straight baselines” instead of following the curvatures of the coast. Straight baselines are drawn connecting selected points on the coast without appreciable departure from the general shape of the coast. The sovereignty of the coastal state over its territorial sea as well as the seabed under is the same as its sovereignty over its land territory. This sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. Beyond the territorial sea, the waters are high seas and are not subject to the sovereignty of the coastal state.

Question 20

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

4. Internal waters, territorial sea, contiguous zone, and exclusive economic zone.

What is a contiguous zone?

Answer 20

The contiguous zone is an area of water not exceeding 24 nautical miles from the baseline. The coastal state exercises authority over that area to the extent necessary to prevent infringement of its customs, fiscal, immigration, or sanitation authority over its territorial waters or territory, and punish infringement of the above laws and regulations.

Question 21

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

4. Internal waters, territorial sea, contiguous zone, and exclusive economic zone.

What is an exclusive economic zone?

Answer 21

The exclusive economic zone (EEZ) is an area extending not more than 200 nautical miles beyond the baseline. The coastal state has rights over the economic resources of the sea, seabed, and subsoil - but the right does not affect the right of navigation and overflight of other states. Under international law, the provisions on the exclusive economic zone are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation, management, and preservation (EMP) of the resources found within the zone.

Question 22

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

4. Internal waters, territorial sea, contiguous zone, and exclusive economic zone.

What is the continental shelf?

Answer 22

The continental shelf (archipelagic or insular shelf for archipelagos) refers to:

(a) the seabed and subsoil of the submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of two hundred meters or, beyond that limit, to where the depth allows exploitation, and

(b) the seabed and subsoil of areas adjacent to islands.

To coastal state has the right to explore and exploit its natural resources, to erect installations needed, and to erect a safety zone over its installations with a radius of 500 meters. It also has the exclusive right to construct and to authorize and regulate the construction, operation, and use of artificial islands and certain other installations.

Question 23

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

4. Internal waters, territorial sea, contiguous zone, and exclusive economic zone.

What are the two (2) primary obligations of coastal states?

Answer 23

The two (2) primary obligations of coastal states are:

(1) They must ensure through proper conservation and management (CM) measures that the living resources of the EEZ are not subjected to over-exploitation.

(2) They must promote the objective of “optimum utilization” of the living resources.

Question 24

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

4. Internal waters, territorial sea, contiguous zone, and exclusive economic zone.

What is the UNCLOS mandate on the marine environment?

Answer 24

Article 192 of the United Nations Convention on the Law of the Sea (UNCLOS) provides:
“States have the obligation to protect and preserve the marine environment.”

Question 25

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

4. Internal waters, territorial sea, contiguous zone, and exclusive economic zone.

What was the Court’s decision in Magallona v. Ermita as to the constitutionality of the Philippine archipelagic baselines law?

Answer 25

The Philippine archipelagic baselines was constitutional.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. Baseline laws are enacted by UNCLOS III state parties to mark-out specific basepoints along their coasts from which baselines are drawn, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.

Thus, baselines are nothing but statutory mechanisms for UNCLOS III state parties to delimit with precision the extent of maritime zones and continental shelves. They play no role in the acquisition, enlargement, or diminution of territory. Under traditional public international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession, and prescription (OPAC).

Question 26

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

10. Jurisdiction of municipality governments.

How is the management of contiguous fishery resources done?

Answer 26

The management of contiguous fishery resources such as bays which straddle several municipalities, cities, or provinces, shall be done in an integrated manner, and shall not be based on political subdivisions or municipal waters in order to facilitate their management as single resource systems.

Question 27

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

10. Jurisdiction of municipality governments.

What was the court’s jurisprudential ruling in Republic v. Provincial Government of Palawan?

Answer 27

Facts: Palawan asserted its claim over 40% of the State’s share in the proceeds of the Camago-Malampaya natural gas project.

Ruling:
An LGU’s territory does not extend to the municipal waters beyond the LGU’s shoreline. An LGU’s territorial jurisdiction refers to its territorial boundaries or to its territory. The territory of LGUs, in turn, refers to their land area, unless expanded by law to include the maritime area. Under Palawan’s charter, the Camago-Malampaya reservoir is not located within its territorial boundaries. Accordingly, only the utilization of natural resources found within the land area as delimited by law is subject to the LGU’s equitable share under the LGC.

Palawan’s interpretation of what constitutes an LGU’s territorial jurisdiction may produce absurd consequences.

Question 28

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

14. The “preferential right” of subsistence or marginal fishermen to the use of water resources not absolute.

What was the jurisprudential ruling of the Court in Tano v. Socrates as to validity of local ordinances?

Answer 28

The ordinances are constitutional. They are police power measures pursuant to the LGC which makes it in fact the Province’s and City’s duty to protect the environment and impose penalties for trespassers.

Section 2 of Article XII aims primarily not to bestow any right to subsistence fishermen, but to lay stress on the duty of the State to protect the nation’s maritime wealth.

Question 29

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

41. Citizen’s suits.

To whom specifically can a citizen file an appropriate civil, criminal, or administrative action for violators of the Fisheries Code?

Answer 29

(a) Any person who violates or fails to comply with the provisions of this Code and its IRRs;

(b) The Department or other implementing agencies with respect to orders, rules, and regulations issued inconsistent with the Act; and

(c) Any public officer ho willfully or grossly neglects the performance of a duty specifically enjoined by the Code and its IRRs.

Question 30

Chapter IX. Philippine Fisheries Code of 1998 (RA 8550, as amended by RA 10654)

42. SLAPP in the enforcement of the Act.

Is SLAPP applicable in this Code?

Answer 30

Yes.

Question 31

Chapter X. Water Code of the Philippines (PD 1067)

4. Underlying principles.

What are the underlying principles of this Code?

Answer 31

(a) All waters belong to the State.

(b) All waters that belong to the State cannot be the subject of acquisitive prescription.

(c) The State may allow the use or development of waters by administrative concession.

(d) The utilization, exploitation, development, conservation, and protection (UEDCP) of water resources shall be subject to the control and regulation of the government through the NWRC.

(e) Preference in the use and development of waters shall consider current usages and be responsive to the changing needs of the country.

Question 32

Chapter X. Water Code of the Philippines (PD 1067)

5. State ownership of waters.

What types of water belong to the State?

Answer 32

(a) Rivers and their natural beds;

(b) Continuous or intermittent waters of springs and brooks running in their natural beds and the beds themselves;

(c) Natural lakes and lagoons;

(d) All other categories of surface waters such was water flowing over lands, water from rainfall whether natural, or artificial, and water from agriculture runoff, seepage, and drainage;

(e) Atmospheric water;

(f) Subterranean or ground waters; and

(g) Seawater.

The following waters found on private lands belong to the State:

(a) Continuous or intermittent waters arising on such lands;

(b) Lakes and lagoons naturally occurring on such lands;

(c) Rain water falling on such lands;

(d) Subterranean or ground waters; and

(e) Water in swamps and marshes.

Question 33

Chapter X. Water Code of the Philippines (PD 1067)

7. Appropriation of waters.

What purposes can water be appropriated? This is also the same order in the preference in the use of waters.

Answer 33

DMIrPFLInRO

(a) Domestic
(b) Municipal
(c) Irrigation
(d) Power generation
(e) Fisheries
(f) Livestock raising
(g) Industrial
(h) Recreational
(i) Other purposes.

Question 34

Chapter X. Water Code of the Philippines (PD 1067)

8. Nationality Requirement.

What is the nationality requirement as to who can apply for water permits?

Answer 34

Only citizens of the Philippines, of legal age, as well as juridical persons, who are duly qualified by law to exploit and develop water resources, may apply for water permits. This includes private corporations with 60% of their capital owned by Filipinos.

Question 35

Chapter X. Water Code of the Philippines (PD 1067)

8. Nationality Requirement.

In IDEALS, Inc. v. PSALM, what was the Court’s jurisprudential ruling on the utilization of a foreign company of water resources?

Answer 35

While the Water Code imposes a nationality requirement for the grant of water permits, the same refers to the privilege ‘to appropriate and use water.’ This should be interpreted to mean the extraction of water from its natural source (Article 9, PD 1067). Once removed therefrom, they cease to be a part of the natural resources of the country and are the subject of ordinary commerce and may be acquired by foreigners. The water so removed from the natural source may be appropriated/used by the foreign corporation leasing the property.

Since the NPC remains in control of the operation of the dam by virtue of water rights granted to it, there is not legal impediment to foreign-owned companies undertaking the generation of electric power using waters already appropriated by NPC, the holder of the water permit.

Question 36

Chapter XI. Philippine Clean Water Act (RA 9275)

2. Importance of waters.

In Maynilad Water Services, Inc. v. Secretart of Environment and Natural Resources, what was the Court’s jurisprudential ruling as to the importance of waters?

Answer 36

The Court highlighted the importance of water not just a mere commodity for sale and consumption but a natural asset to be protected and conserved. Sanitation is its corollary constant, as a poor state of sewerage systems is one of the pillar’s of people’s miseries. We have a collective responsibility to preserve water resources and improve sanitation facilities for future generations.

Question 37

Chapter XI. Philippine Clean Water Act (RA 9275)

2. Importance of waters.

What is the public trust doctrine?

Answer 37

The doctrine impresses upon states the affirmative duties of a trustee to manage the country’s natural resources and embodies four (4) key principles: environmental protection, stewardship, communal responsibility, and sustainability (EpSCrS).

The doctrine reaffirms the superiority of public rights over private rights for critical resources. In this framework, a relationship is formed:
(a) the State is the trustee, which manages specific natural resources;
(b) the natural resources are the trust principal; and
(c) the current and future generations, as the beneficiaries.

The public is regarded as the beneficial owner of trust resources, and courts can enforce the public trust doctrine even against the government itself.

Question 38

Chapter XI. Philippine Clean Water Act (RA 9275)

2. Importance of waters.

How is the public trust doctrine reconciled along with the Regalian doctrine, the doctrine of parens patriae, and police power of the state?

Answer 38

While the Regalian doctrine is state ownership over natural resources, police power is state regulation through legislation, and parens patriae is the default state responsibility to look after the defenseless, the public trust doctrine brings the three doctrines in a cohesive whole, enshrining the objects of public interest, and backing the security of the people, rights, and resources from general neglect, private greed, and even from the on excesses of the State.